AN ACT
RELATING TO GUARDIANSHIP; CREATING THE
OFFICE OF GUARDIANSHIP IN THE DEVELOPMENTAL DISABILITIES PLANNING COUNCIL;
PROVIDING POWERS AND DUTIES; TRANSFERRING FUNCTIONS, PROPERTY, CONTRACTUAL
OBLIGATIONS AND STATUTORY REFERENCES FROM THE OFFICE OF THE ATTORNEY GENERAL.
BE IT ENACTED BY THE LEGISLATURE OF
THE STATE OF NEW MEXICO:
Section 1. SHORT TITLE.--This act may be cited as the
"Office of Guardianship Act".
Section 2. OFFICE OF GUARDIANSHIP--CREATED--STAFF.--
A. The "office of guardianship" is
created in the developmental disabilities planning council.
B. The director of the developmental
disabilities planning council shall employ a head of the office who shall be
hired on the basis of ability, experience and knowledge of guardianship issues
under the Uniform Probate Code. The
position shall be classified pursuant to the Personnel Act.
C. Subject to appropriations, the director may
hire such other professional and clerical staff as necessary to carry out the
purposes of the office.
Section 3. OFFICE--POWERS AND DUTIES.--
A. The office of guardianship may:
(1) promulgate rules in accordance with the State
Rules Act to carry out the provisions of the Office of Guardianship Act; and
(2) enter into agreements with other state or
federal agencies to provide guardianship services and to provide or receive
payment for such services.
B. The office of guardianship shall:
(1) contract for the provision of probate
guardianship services to income-eligible incapacitated persons, including
temporary guardianship as provided in Section 45-5-310 NMSA 1978;
(2) provide for the recruitment and training of
persons interested and willing to serve as mental health treatment guardians;
(3) provide training and information to
interested persons on the duties and responsibilities of guardians, including
alternatives to guardianship and mental health treatment guardianship;
(4) establish procedures for the investigation
and resolution of complaints against contractors;
(5) contract for attorneys to petition the
district court for guardianship of persons believed to be incapacitated or to
seek amendment or termination of existing guardianship orders if the needs or
situation of wards have changed; provided that the selection of persons to be
served under such contracts shall be made by the office based on selection
criteria established by rule; and
(6) serve as an interested person as defined in
Subsection I of Section 45-5-101 NMSA 1978.
Section 4. CONTRACT MONITORING AND ENFORCEMENT.--
A. The office of guardianship shall monitor and
enforce all guardianship contracts. In
carrying out this duty, the office may:
(1) have access to case records, copies of court
filings and reports, financial records and other records maintained by
contractors related to contract services provided unless specifically
sequestered by the court;
(2) petition the court of jurisdiction for access
to records that have been sequestered;
(3) arrange visits with wards who are served by
contract guardians; and
(4) pursue legal and other remedies against
contractors for noncompliance with contract provisions.
B. The office shall protect and maintain the
confidentiality of all client-specific information and records obtained to the
same extent as required for the contractor and to any extent otherwise required
by state or federal law.
Section 5. CONTRACTS.--A contract for guardianship
services shall include:
A. a requirement that contractors and their
staff meet nationally recognized standards for guardianship services;
B. a requirement for adoption and compliance
with a code of ethics for guardians;
C. the maximum caseload for guardians;
D. the fee schedule for services provided;
E. assurance that the civil rights of wards
served by the contractor shall be met, including the right to be served in the
most integrated setting appropriate to the needs of the ward;
F. provisions for access by the office of
guardianship to records, wards and contractor staff as needed to monitor and
enforce contract compliance and for quality assurance purposes; and
G. minimum financial accounting and reporting
requirements.
Section 6. RESOLUTION OF COMPLAINTS.--
A. The office of guardianship shall establish by
rule for the filing, investigation and resolution of complaints about
guardianship services provided by contractors.
B. The office shall acknowledge receipt of the
complaint, notify all parties involved and initiate an investigation within
fifteen working days of the filing of the complaint.
C. A determination shall be made and a decision
rendered on the complaint within sixty working days unless mutually agreed upon
by all parties or unless a shorter time is required to protect the ward.
D. The office may refer complaints to other
agencies for investigation or prosecution, as appropriate.
E. Complaints against the office or a staff
member of the office shall be investigated by the human services department.
Section 7. TEMPORARY PROVISION--TRANSFERS.--
A. On the effective date of this act, all
functions, appropriations, money, records, files, furniture, equipment,
supplies and other property of the office of guardianship services of the
office of the attorney general shall be transferred to the office of
guardianship of the developmental disabilities planning council.
B. On the effective date of this act, all
contractual obligations of the office of guardianship services of the office of
the attorney general shall be binding on the office of guardianship of the
developmental disabilities planning council.
C. On the effective date of this act, all
references in the law to the office of guardianship services of the office of
the attorney general shall be deemed to be references to the office of
guardianship of the developmental disabilities planning council.
Section 8. REPEAL.--Section 8-5-16 NMSA 1978 (being Laws
1995, Chapter 140, Section 1) is repealed.
Section 9. EFFECTIVE DATE.--The effective date of the
provisions of this act is July 1, 2003.
HGUAC/HB 416
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